March 26, 2014

Queen's Consent

The Political and Constitutional Reform Committee today published our report into 'The impact of Queen's and Prince's Consent on the legislative process.'

Below is my minority report:

Draft Report (The impact of Queen’s and Prince’s Consent on the legislative process), proposed by Paul Flynn, brought up and read, as follows:

1. Consent is at best otiose and at worst a possible elephant trap that could lead to future constitutional crises.

2. The evidence given to the Committee was remarkably unanimous in its failure to find any convincing reasons for continuing with the use of Royal Consent. The only justification was given on the basis of ‘comity’. The great majority of the evidence is that consent is a piece of anachronistic legislative litter that serves no useful purpose. Royal Assent is in place and is unlikely to be changed. It give full powers to the monarchy to stop Bills that they think are damaging to the country’s interests or to their own interests. There has been no consideration of the use of Royal Assent by the Committee.

3. Consent now places obstacles in the progress of Bills and in some cases obstacles that prevent Bills being considered at all. It wastes the time, money, and skills of clerks and lawyers and its origins are little understood. No convincing case has been presented by any of our many witnesses for its continuing use. At least 39 Bills have been subject to royal approval with the senior royals using their power to consent or block new laws in areas such as higher education, paternity pay and child maintenance. Possibly the most significant Bill was described in internal Whitehall papers prepared by the Cabinet Office for lawyers. It shows that on one occasion a bill was not presented to the Queen for assent. The Bill was in the name of Tam Dalyell in 1999 and it aimed to give the power of initiating and approving military strikes against Iraq from the Monarch to Parliament. The Bill was prophetic in anticipating a situation that has been developed since then by precedent. Following the vote for the first time in our history in 2003 on the decision to go to war in Iraq, all parties have since said they would respect this precedent and that Parliament would vote on these occasions in future. If a future monarch should wish to obstruct the will of Parliament on a matter of this magnitude, I believe it would create a constitutional crisis.

4. Professor Robert Blackburn had stated in his written evidence that “there is a cost factor in maintaining this system of Royal Consent.” Professor Blackburn added: “It is difficult to quantify this in terms of time taken or financial calculation of the support service provided, but it involves an extensive reading of documentation and letter writing by officials in the Office of Parliamentary Counsel, the Clerks of Legislation in both Houses of Parliament, the Queen’s Private Secretary at Buckingham Palace, and liaison with the Queen’s Solicitors, Messrs Farrer & Co.”

5. Power to approve or disapprove in defiance of a parliamentary vote for or against a war would be taken as an unwarranted interference in the democratic process. The committee has not looked in detail at the use of the Royal Prerogative which in almost all cases is delegated to government ministers. The main report is too heavily dependent on the recent experience of the present monarch who has been in all known cases inert on political matters. This is not necessarily a guide for the future as we might have a monarch with strong opinions who may decide to express their strong views by declining consent. In our present democratic age this would be judged to be an intolerable imposition of a gag on the freedom of MPs – especially back bench MPs.

6. Tam Dalyell’s Bill of 1999 anticipated the present situation in Parliament which was reflected in the vote of August 29th when the Commons decided not to support a Prime Minister intent on going to war in Syria. Public opinion today would probably not tolerate the use of the Royal Consent to block the express view of a Parliament in matters of such gravity. Parliament, recently through the Wright reforms and other changes, has become more open for debate especially debates initiated by back benches and non government parties. This young Committee has ‘Reform’ in its title. Ending Consent is an easily attainable reform that should be implemented. We would be faithfully reflecting the recommendations of those who have gone to a great deal of trouble to give evidence to us. I believe it will have a deleterious effect on our status and the willingness of future witnesses to prepare detailed evidence if we disregard the weight of their evidence.

7. The arguments in favour of the present proposals are that they are likely to be acceptable to government and that they will make life slightly less irksome for Privy Counsellors. The suggestion that Consent should be continued to remind Parliament of the three branches of government is not convincing. Royal Assent does this and there are no proposals to abolish that. There are also at least a thousand physical reminders in the form of statutes, paintings and coats of arms that remind members of the role of the monarchy in our Parliament.

8. Changes to our parliamentary system and our legislative processes are rare. However there is no plausible case for maintaining this wasteful and time consuming procedure. The reform of Consent does not require legislation but merely needs a motion put to the House such as that proposed by Lord Berkeley that: ‘Nothing in any rule of law, or the law, or practice of Parliament shall require a Parliament to seek the consent of the Monarch, the Prince of Wales, the Duke of Cornwall or the Prince Regent to the consideration of public bills which pass through Parliament.’

9. Finally, the Committee is in an interesting position in that, as far as I know, the future of Consent has never before been debated or considered by a Select Committee. If we fail to recommend a reform, for many years into the future that decision will be interpreted as approval of the present system. It will be said that a Select Committee looked at this and found that there was nothing wrong with Consent. That would be a very unfortunate impression to give and I believe, a dereliction of our role as a reform committee.